8 year time limit applies to road design claims in Georgia

Occasionally we see claims that an accident and injury was caused, in whole or in part, by negligence in the design of a road, intersection or signage. In Georgia, there can be a claim against Georgia DOT if the road design did not conform to design standards when it was built. There may also be claims against an engineering firm for negligent design of a state, county or municipal roadway.

Now the Georgia Court of Appeals has clarified that a statute setting an 8 year time limit to sue after completion of construction to sue applies to road projects just as to construction of a house, deck or whatever.

In Feldman v. Arcadis US Inc., A12A0553, 12 FCDR 1822 (06/08/12), the Court of Appeals held that in a suit for negligent planning and design of a section of roadway, the 8 year statute of repose in OCGA 9-3-51 barred the suit because the project was an “improvement to property” under the plain meaning of the statute.

OCGA § 9-3-51 (a) states that

[n]o action to recover damages: (1) For any deficiency in the survey or plat,planning, design, specifications, supervision or observation of construction, or construction of an improvement to real property; (2) For injury to property, real or personal, arising out of any such deficiency; or (3) For injury to the person or for wrongful death arising out of any such deficiency shall be brought against any person performing or furnishing the survey or plat, design, planning, supervision or observation of construction, or construction of such an improvement more than eight years after substantial completion of such an improvement.

Georgia courts apply the following factors when analyzing what constitutes an “improvement to real property”:

(1) [whether] the improvement [is] permanent in nature; (2) [whether] it add[s] to the value of the realty[] for the purposes for which it was intended to be used; [and] (3) [whether] the contracting parties [intended] that the improvement in question be an improvement to real property[,] or [whether] they intend[ed] for it to remain personalty.

The statute of repose serves to limit the time for the discovery of a design or construction flaw to a reasonable number of years because such flaws would be discovered through the normal use of an improvement if it is indeed an improvement to real property rather than a fixture to the property. A roadway is just such an improvement.